We could prosecute Assange — but we shouldn’t

But acting callously, or self-interestedly, or narcissistically, ought not to be criminal, particularly when what is involved is, undeniably, speech. We should be deeply troubled by the notion that our government might be devising schemes to prosecute people for what they have said or written. The old cases had it right. Shouting “Fire!” in a crowded theater. Publishing the movements of troop ships in a time of war. Other than speech of that level, the only people who should be punished for what they disclosing secrets are those who have promised—in exchange, say, for government employment—not to do so.

Indeed, as several observers have pointed out, an interpretation of the Espionage Act sufficiently broad to encompass what Wikileaks has done would surely cover as well the newspapers that have published the documents. If Assange’s actions have damaged the security of the United States, then the same argument presumably applies to the New York Times and the Wall Street Journal. Indeed, it is the publication of the documents by respected institutions of journalism, and not their posting on the Web, that provides sufficient imprimatur to stir the controversy.

The Espionage Act is a broadly written and scary statute. As Geoffrey Stone points out in a recent book, the statute was adopted precisely to chill dissent. Happily, the Act has been enforced only rarely over the past half century. Rare is best. Dissent is the life’s blood of democracy, and should be carefully nourished, not scared into hiding. I have no trouble with pursuing the leakers who have done so much damage to the nation’s security; but those who publicize what is leaked are the symptoms, not the problem.